Director of Public Prosecutions v Chatora

[2017] VCC 1760

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 1701429

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAWANDA CHATORA

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 November 2017
CASE MAY BE CITED AS:	DPP v Chatora
MEDIUM NEUTRAL CITATION:	[2017] VCC 1760

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Henderson
For the Accused	Ms K. Ballard

HER HONOUR:

1Twanda Chatora, you have pleaded guilty before me to three charges of obtaining property by deception.

2The facts underlying your offending are as follows:  This offending occurred between 30 November 2015 and 20 April 2016.  During this period of time, you were a private client services manager at Maddern Financial Advisors.

3Charge 1 relates to the victims, Sheila Smith and Morris Clarke, who in 2007, engaged the services of Maddern Financial Advisors, that is MSA, for a superannuation fund for their retirement, in that period, investing a substantial amount of money, which after ten years was to insure in the sum of $245,239.04 as at August 2015.  A cheque was issued by the Macquarie Bank, payable to Ms Smith and Mr Clarke's superannuation fund, but it never found its way MFA.

4In January 2015, a reconciliation of the superannuation fund was made by MFA and it was noted that funds were missing from that account.  Ultimately, as you were the administrator of that superannuation fund which was called Brass Razoo Superannuation, herein referred to as BRS, enquiring into the missing funds.  You took a telephone call in February 2016 from the Macquarie Bank and were told that that previous cheque had been cancelled by them and a new one reissues, which has been sent to MFA for banking.  It was your job to monitor the reissued cheque and bank it into their superannuation fund on its receipt.

5In February 2016, you generated two 100 points of identification forms in the names of Ms Smith and Mr Clarke and then took possession of the reissued cheque on 22 February 2016.  The next day, you made an online bank account application at NAB in the names of Ms Smith and Mr Clarke, supplying full identification details, then opened a trade account in the name of BRS, also providing full identification details of that fund.

6Then on 24 February 2016, NAB telephoned you and you purported to be
Mr Clarke.  The account was activated and you deposited the cheque into that account.  Between 29 February and 18 March 2016, you made a number of transactions, being transfers into a Commonwealth bank account in your name, an ANZ account in your name and purchase of CBA shares and sales, for which you got a capital gain of $7,030.82.  In other words, you took out all the money, put some in bank accounts in your name and used the rest to purchase shares, which you sold for a profit.

7You tendered a letter of resignation to MFA on 18 March 2016, your last day of employment to be 24 April 2016.

8In March, you updated the MFA data system noting the enquiry into the missing cheque as completed, and on 22 April, accessed the MDA data system and deleted the task to bank the reissues cheque.  You ceased employment with MFA on that day and then left Australia to visit your family in Zimbabwe.

9Mr Clarke unfortunately died on 21 June 2016.  There was a second reconciliation of BRS, and again, missing funds were noted as having yet to be recovered, and a subsequent investigation by MFA and Ms Smith led to the National Bank and police being notified.  Your actions in obtaining those funds underlie Charge 1 on the indictment.

10Charge 2 relates to a second fraudulent account, which was identified during the course of internal investigations by the National Bank.  The victim, Mr Forbes, was also a client of MFA and in March 2016, you became aware of a roll over payment due to be made to Mr Forb's from the superannuation fund.

11On 31 March 2016, you made an online bank account application at UBank in the names of the Forbes superannuation fund, providing full identification details.  A cheque payable to FSF was issued in April 2016, which you intercepted and deposited into a UBank account in your name.  Between 21 and 26 April 2016, you reduced the balance of that account to zero with three transfers to funds into a Commonwealth bank account in your name.  Those actions, as I have said, underlie Charge 2 on the indictment.

12In relation to Charge 3, you were ultimately interviewed by police on 11 April 2017, and on being informed by them that a full audit was being made of the MFA accounts, you volunteered the information that there was a third client victim, one Jillian Levy.  You told police that Ms Levy had emailed a withdrawal form to MFA in order to transfer funds from her Macquarie bank account to her ANZ bank account.  But you changed the form so the funds were paid into your Commonwealth bank account, and you did this several times.

13Ultimately, you diverted funds belonging to Ms Levy totalling $13,435.20.  The amounts that you took from Mr Forbs totalled $48,821.09.

14You made a full and frank admission to police about the offending.  As I have already said, you left for Zimbabwe in April of 2015, but returned about 11 months later, and two weeks after your return, were arrested by police and an interview conducted.

15In that record of interview, you told police that you had begun foreign currency trading in 2011, but amassed a debt of about $100,000, which you thought you could pay off by further trading.  You said that when the cheque for BRS came, you opened an account with the NAB without anyone at MFA knowing and then set up false email accounts and security questions and answers so that you had exclusive access to the NAB account.

16You said that you transferred the funds to your CAB and ANZ accounts, then further transferred those funds to your foreign currency trading account, using some of the funds to repay certain loans and using some of the funds to buy Commonwealth Bank shares, which you sold soon after for a profit.  You said you hoped to trade for two weeks and transfer the money to your victim's account, but you lost all of that money.  You said to police that you felt terrible and that you had, "Just got caught up in a web of things I couldn't get out of."

17In relation to Charge 2 you said that having lost all of the BRS funds, you thought you could use Mr Forbes money to trade those funds to repay Ms Smith and Mr Clarke.  That your intercepted the cheque.  That you did transfer about $20,00 back to Mr Forbs, but you kept the balance for yourself.

18You were taken into custody on 11 April 2017, but released on bail on 2 May 2017, and have therefore spent 22 days in custody.

19A victim impact statement was received from Ms Smith, which was read out during court.  In my view, it was a very measured victim impact statement, as life was already extremely difficult for Ms Smith, having discovered that at the time her long-term partner had been diagnosed with an aggressive and terminal cancer, and her partner died on 21 June 2016, which was about four months after your offending against Ms Smith and Mr Clarke.

20Ms Smith had to deal with the terrible diagnosis of her partner, the rapid course of this most distressing illness, his death and then on top of that, the knowledge that a person she had known and trusted have completely defrauded her.  She said, "Taking into account that it was widely known about John's illness, I find it abhorrent beyond words that a person known to us would knowingly steal both our money and our identity."

21As a result of your offending, in addition to the enormous and emotional distress that you had caused her, Ms Smith is left in a position that where she, "Is constantly questioning every facet of my life, and in particular, anything involving banking and financial institutions, and especially those who have allowed this to take place."  She concluded, "I have been forced to be wary of everyone and everything.  My home is now fortified with both inside and outside cameras and locked gated."

22I should interpose here that because of an insurance policy, fortunately,
Ms Smith, who relied on this money for her retirement as an income was able to be recompensed, as were your other two victims.

23I now turn to your personal circumstances.  You are 34 years of age and were aged between 32 and 33 at the time of this offending.  You had a difficult upbringing.  You hail from Zimbabwe.  You came to Australia in 2007 and are now an Australian citizen.  You are one of three boys born to your parents.  When you were very young, your father moved alone to the UK to undergo further study.  The family struggled financially during that time.  Your father then returned.  He obtained a poorly paid government job in an outlying city in Zimbabwe, and ultimately moved the family to Harare, where he obtained further employment.

24Your parent’s relationship was a difficult one, as it appears your father formed another relationship, was of very little support to your mother and you and your brothers, and your mother, who was a teacher in the country, a poorly paid position, was also forced to set up a sewing business which she conducted after her teaching in school during the day.

25You told psychologist, Dr Joel Godfredson, whose report dated 6 November 2017, that ultimately when you were 17, your mother died of cancer, a death which you attributed partly to the enormous amount of work she had to carry on during her lifetime.

26In any event, you were sent to boarding school and on leaving school, you attended university, obtaining a Bachelor of Business Studies.  You met your wife while you were studying.  You tried to start a business after you finished your education.  The economic situation in Zimbabwe was dire that business failed and you then went about seeking to emigrate to another country offering you more hope in the future.

27As I have stated, you came to Australia in 2007 and undertook an advanced Diploma in Financial Management at RMIT.  You also obtained a Masters in that field, but found it difficult to find work.  Your wife followed you and the two of you married in Australia in 2008.  She has suffered significant health difficulties, including tuberculosis, although she is now employed with Monash Health as a team leader in the business section of that organisation.

28Somewhat unexpectedly and to the delight of both of you according to
Dr Godfredson, you were able to have a daughter in 2014.

29You found it difficult to find employment initially, to the point where you were considered to be over qualified.  For what jobs you did receive in an interview, you in fact removed two of your most senior qualifications from your CV and ultimately obtained a couple of jobs before obtaining employment with Maddern Financial Services.

30I had gone into your background in some detail because it seems to me, there is some relevance in it to your offending.  It appears you very keenly felt your father's inability or lack of desire to support your mother and you and your brothers financially, and believed you had a particular duty in that regard.  You were not particularly highly paid and so you began trading in foreign currency on the internet.

31I am satisfied after looking at the report of Dr Godfredson and another report to which I will refer shortly, that this became a sort of gambling addiction for you.  I note that this obsessed you in your non-working hours to the point that you had your alarm set to get you up a couple of times at night.  Ultimately, this trading was spectacularly unsuccessful, left you with debts of $100,000 and as a result of this, you have been declared bankrupt.

32It was this activity that led you to dishonestly obtain the moneys you did from MFA and this has had a severe effect not only upon them, but also upon the company which was left with unsustainable insurance premiums as a result of the payout, and a difficulty I am informed by the prosecutor, in obtaining that insurance in the future.  Also, activities such as yours very badly affect the reputation of organisations such as MFA.

33You travelled to Zimbabwe because your grandfather was dying.  It was also, your client frankly informed me, partly in order to avoid the consequences of your offending.  Ultimately, you did voluntarily return and that is to your credit.

34At your solicitor's suggestion, you attended upon Dr Godfredson for a total of ten sessions.  Dr Godfredson wrote,

"The purpose of his psychological therapy was to assist him in managing his mental health concerns in the context of his legal matters and to improve his awareness of the factors relating to his offending behaviour."

35You were described as an active participant in those sessions, with a greater understanding of why you offended, a greater understanding of the need to communicate with your wife who had been kept in the dark about all these activities. Fortunately, she remains supportive of you and attended court today.

36I am satisfied from reading this report that you have participated in the treatment program in a genuine way, that you have gained a great deal of insight from it as to in fact, why you offended, the way in which you went about the offending, a greater insight into the obsession that overcame you, and of particular importance it would seem to me, the damage this has done to your marriage and the assistance you drew from Dr Godfredson in retrieving that relationship.

37You also attended upon Gambler's Help and I received a reference from Vialetta Seleska, who regarded your activities in the foreign currency markets as a form of gambling.  She stated,

"His report exhibited many characteristics as someone with a gambling problem.  These included a preoccupation with gambling and chasing loses, gambling is a way to escape problems, lying to loved ones about the existence or extent of one's gambling and committing crimes to finance one's gambling."

38The authorities make it clear that gambling is not to be regarded as a migratory factor, that is, a factor which means that a court should respond in a less severe way.  But it does provide an explanation for your offending.  She said that you did well in the counselling process and that you have maintained a gambling free lifestyle if you like for about 18 months, your counsel informing me that you essentially stopped engaging in online trading in about April of 2016.

39It was frankly conceded by your counsel that the only way I can deal with you is by way of a term of imprisonment, and I agree with that submission.  Overall, you obtained, by deception, a sum of $307,495.33.  That is a not an inconsiderable sum.

40You have no prior convictions, but your offending occurred over a period of some months and the prosecution correctly submitted to me that a prior crime free history is of less weight in matters of this kind.

41However, I am satisfied that you do have good prospects of rehabilitation.  You have maintained the support of your wife.  You have undergone specific, helpful gambling and psychological therapy, and appear to have engaged in a genuine way in both.  I am satisfied that you are truly remorseful for your offending.  That was indicated both by the very full and frank record of interview that you conducted with police, and your early plea of guilty.  You wrote a letter to this court which I regarded as genuine, where you expressed very appropriate remorse for your offending.

42Additionally, you have sought the support of your local pastor, who also wrote of your considerable activities in the church prior to this offending.  You have confessed that offending to the Reverend Peter Bondole of the Faith and Victory Church in Preston and you also have his support.

43Very sensibly, you and your wife have worked out what your financial situation is likely to be while you are in gaol.  Since being charged with this offending, you have undertaken labouring, packing and food delivery work, but that assistance will cease upon you being placed in gaol.

44In sentencing you, I do take into account your plea of guilty, your genuine remorse and what I regard as your positive prospects of rehabilitation.

45Can you stand up please, sir?

46On Charge 1, you are sentenced to 12 months' imprisonment.

47On Charge 2, you are sentenced to seven months' imprisonment.

48On Charge 3, you are sentenced to five months' imprisonment.

49The base charge will be the charge imposed on Charge 1.  I order that two months - sorry, have a seat, sir.  I am sorry, I do apologise.  I am sorry.

50On Charge 1, I am sentencing you to 16 months' imprisonment.

51On Charge 2, I am sentencing you to eight months' imprisonment.

52On Charge 3, I am sentencing you to five months' imprisonment.

53The base charge will be the sentence imposed on Charge 1, 16 months.  I am going to order that four months of the sentence imposed on Charge 2 and two months of the sentence imposed on Charge 3 be served cumulatively to the sentence imposed on Charge 1 and to each other, giving a total effective sentence of 22 months.  I order that you are to serve 14 months before becoming eligible for parole.

54I declare that 22 days of that sentence have already been served by way of pre-sentence detention.

55Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of 20 months.

56Thank you.  Now I know there is a s.464ZF application.  Look, I do not think it is appropriate in this case, so I will not grant that.  Was there anything else that I needed to attend to?

57COUNSEL:  No, Your Honour.

58HER HONOUR:  Thank you.  I thank counsel very much for their assistance in this matter.  Ms Smith, I hope that life has settled down a little for you.  Very, very difficult time for you indeed.  Thank you.  Yes.  All right.  Thank you very much.

59COUNSEL:  Your Honour pleases.

60HER HONOUR:  Thank you.  All right, and the other matter that I have not mentioned is that I am satisfied there has been an amount of extra curial punishment in this case, entirely brought on by your offending.  You worked so hard, Mr Chatora, to calve out a new life, to obtain the right qualifications and it is all for nothing now.  You are going to have to start all over again.  All right?  Thank you very much.  Yes, thank you.

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